By Robert Kittle – COLUMBIA, S.C. (WSPA) – Prosecutors have not released the name of the 14-year-old arrested for the shootings at Townville Elementary School because of his age, and they must still decide whether he will be tried as a juvenile or an adult. In South Carolina, a child under the age of 17 is automatically tried as a juvenile in Family Court, unless a prosecutor asks a judge to have him tried as an adult.
Josh Gupta-Kagan, a USC law professor who teaches juvenile justice, says, "That often involves its own very involved hearing, a lot of evaluations of the child to determine their developmental state, their mental health, their family background, anything which may play into the decision. The courts will usually look at the severity of the charges, the amount of premeditation, if any, that's alleged by the state. And also one of the phrases that's often used is whether the child is amenable to treatment. Can the rehabilitative model of the juvenile court serve this child, or does the interest of the public or the child require him to be waived up?"
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He says South Carolina law allows a child of any age who's charged with murder to be tried as an adult. For any other charge, a child has to be 14 or older to be tried as an adult, and that's only for serious felony charges. Carrying a weapon on school property is one of the charges that allows a 14-year-old to be tried as an adult.
If a 14-year-old is tried and convicted as a minor, the maximum possible sentence is that he be held in the Department of Juvenile Justice until he's 21, Gupta-Kagan says. If a 14-year-old is tried and convicted as an adult, he would stay at DJJ until he's an adult and then be transferred to the Department of Corrections.
"The 8th Amendment, which protects all of us from cruel and unusual punishment, has been interpreted by the U.S. Supreme Court to prohibit capital punishment against anyone for a crime committed as a child, and the Supreme Court has drawn the line at 18, so 14 is obviously significantly under that," he says. "The U.S. Supreme Court has also, in a line of 8th Amendment cases, made it very, very difficult to impose a life-without-possibility-of-parole sentence on a 14-year-old, or really anyone under the age of 18."
He says minors are given special protections because the courts realize that children and teens are still developing. "Your ability to make good decisions, your susceptibility to peer pressure, your ability to kind of look into the future and consider consequences the way adults do, that continues, it really continues (developing) until you're 24 or 25 years old. That's what neurologists have found and that's what's informed the U.S. Supreme Court decisions and why it's important that our system provide that recognition of adolescent development to kids, even when they commit the most severe offenses," he says.